UNITED STATES OF AMERICA v. ANTHONY JAMAL JONES
Case No. 94-cr-20079-EJD-1
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
EDWARD J. DAVILA
Re: Dkt. No. 72
ORDER GRANTING MOTION FOR COMPASSIONATE RELEASE
In 1995, Anthony Jamal Jones pleaded guilty to various robbery and firearms charges and was sentenced principally to 357 months (or 29.75 years) in prison. Mr. Jones is currently serving out his term of imprisonment in the custody of the Bureau of Prisons (“BOP“) at USP Atlanta.
Mr. Jones moves this Court for his immediate release pursuant to
I. BACKGROUND
The following background facts are undisputed.
In 1994, Mr. Jones was charged with five counts of armed robbery, see
On January 4, 1995, Mr. Jones entered into a plea agreement under which he pleaded guilty to the five counts of armed robbery (Counts 1-5) and to two counts of using a firearm in furtherance of a crime of violence (Counts 6 and 10). Dkt. No. 19; Dkt. No. 73-3 (plea agreement) at 1-2. In exchange for Mr. Jones‘s guilty plea, the Government agreed to and did move to dismiss the other three counts of using a firearm in furtherance of a crime of violence. Id. at 4; Dkt. No. 18.
As the parties did not agree to a particular sentence, see Dkt. No. 73-3 at 7, Mr. Jones was sentenced by District Judge
Mr. Jones was initially committed to FCI Florence in Colorado, beginning in April 1995. While there, in 1997, Mr. Jones was convicted of misdemeanor simple assault and sentenced to 12 months incarceration, to run consecutive to the sentence imposed in the above-captioned case. Dkt. No. 73-5 (Dkt. No. 73-6 (docket for Case No. 97-cr-00159 in the District of Colorado). Since then, Mr. Jones‘s prison term appears to have been largely uneventful. See Dkt. No. 73-5 (“BOP Summary Reentry Plan“). Mr. Jones was later transferred to USP Atlanta, where he is currently incarcerated. Id. at 3.
Mr. Jones is presently 48 years old. Dkt. No. 73-9 (Exhibit I, BOP medical records, filed under seal). He has been incarcerated for more than 25 years. According to the BOP, he is projected to satisfy his sentence in the instant case and begin serving his sentence in the Colorado case on September 15, 2020; he is projected to be released on September 14, 2021. Dkt. No. 78-1.
Now before the Court is Mr. Jones‘s motion for a reduction in his sentence pursuant to
II. LEGAL STANDARD
A federal district court “may not modify a term of imprisonment once it has been imposed” except in limited circumstances.
In addition, as alluded to above,
III. DISCUSSION
In his
The Government opposes release, arguing that these reasons are not “extraordinary and compelling.” In addition, the Government maintains that a reduction based on changes to sentencing law would not be consistent with the Sentencing Commission‘s policy statement at § 1B1.13 of the Guidelines. The Government also asks the Court to limit any sentence modification that it might grant to time served.
Having considered the parties’ submissions and the applicable law, the Court concludes that the combination of changes in federal sentencing law, Mr. Jones‘s potential risk of serious illness from COVID-19, and the
A. The Sentencing Commission‘s Policy Statement Re “Extraordinary and Compelling Reasons”
Turning to the merits of Mr. Jones‘s request, the Court begins with the Government‘s threshold argument that a court, in determining whether “extraordinary and compelling reasons” exist, may only consider the reasons specifically identified by the Sentencing Commission in its commentary to § 1B1.13 of the Guidelines. See Opp. at 5-6. The Court finds that that it is not so limited and may consider any relevant circumstances.
As noted above, a sentence reduction may be granted under
(A) Medical Condition of the Defendant.—
(i) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.
(ii) The defendant is—
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive impairment, or
(III) experiencing deteriorating physical or mental health because of the aging process,
that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.
(B) Age of the Defendant.—The defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.
(C) Family Circumstances.—
(i) The death or incapacitation of the caregiver of the defendant‘s minor child or minor children.
(ii) The incapacitation of the defendant‘s spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner.
(D) Other Reasons.—As determined by the Director of the Bureau of Prisons, there exists in the defendant‘s case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).
Id. § 1B1.13 cmt. 1.
In the Government‘s view, “a defendant must be able to demonstrate one of the listed reasons in (A)–(C) above or demonstrate some other condition that in the discretion of the Director of BOP qualifies for compassionate release.” Opp. at 6 (emphasis in original). That is, the Government does not believe the Court has discretion to consider reasons other than those examples listed in § 1B1.13; doing so—the argument goes—would not be “consistent with” the Sentencing Commission‘s policy statement per
First and foremost, “the listing of examples of extraordinary and compelling reasons in the Policy Statements § 1B1.13 and Application notes is not, by its language, exclusive.” United States v. McPherson, No. CR94-5708RJB, 2020 WL 1862596, at *4 (W.D. Wash. Apr. 14, 2020).
The Application Notes state that “extraordinary and compelling reasons exist under any of the circumstances set forth below“; they do not state that extraordinary and compelling reasons exist only under the circumstances described. U.S. Sentencing Guidelines Manual § 1B1.13 cmt. 1. In other words, “the listing of things that are not considered extraordinary and compelling does not limit what else may be considered extraordinary and compelling.” McPherson, 2020 WL 1862596, at *4. Thus, consideration of other relevant factors is not inconsistent with the plain terms of the Sentencing Commission‘s policy statement, even if it remains binding in full. See United States v. Hicks, 472 F.3d 1167, 1172 (9th Cir. 2007), abrogated on other grounds by Dillon v. United States, 560 U.S. 817 (2010) (“[A]s USSG § 1B1.10(b) states only that the court ‘should consider the term of imprisonment that it would have imposed had the amendment been in effect’ in 1993, and not that it may only impose that sentence, departing from the 1993 sentence would not conflict with the language of the policy statement.“) (alterations omitted).
Moreover, the Court observes that USSG § 1B1.13 has not been amended since the passage of the First Step Act (“FSA“). First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018). Under the version of
USSG § 1B1.13, however, still presupposes the prior system. See United States v. Rodriguez, 424 F. Supp. 3d 674, 681 (N.D. Cal. 2019) (“[T]he outdated policy statements still assume compassionate release ‘may by granted only upon motion by the Director of the Bureau of Prisons.‘“). For instance, it incorrectly states that “a reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons.” U.S. Sentencing Guidelines Manual § 1B1.13 cmt. 4. The parties do not dispute that this aspect of the policy statement has been overridden by statute. Application Note 1(D) could likewise be seen as “anachronistic” in “its sole reference to the BOP Director.” United States v. Schafer, No. 18-6152, 2020 WL 2519726, at *4 (W.D.N.Y. May 18, 2020); see also Adeyemi, 2020 WL 3642478, at *15 (finding that the introductory phrase to Note 1(D)—“as determined by the Director of the Bureau of
It should be noted that the Sentencing Commission‘s failure to revise § 1B1.13 is likely not deliberate: As several district courts have pointed out, “the Commission currently has only two voting members, two shy of the four that it needs to amend the Guidelines.” United States v. Marks, No. 03-CR-6033L, 2020 WL 1908911, at *6 (W.D.N.Y. Apr. 20, 2020) (citing United States v. Webster, No. 91cr138, 2020 WL 618828, at *4 n.3 (E.D. Va. Feb. 10, 2020)); see also United States v. Brown, No. 4:05-CR-00227-1, 2020 WL 2091802, at *5 n.9 (S.D. Iowa Apr. 29, 2020).
In any event, because the Sentencing Commission has not yet “harmonized its policy statements” with the FSA, courts have split as to whether they are bound to follow the terms of § 1B1.13 as currently drafted. United States v. Chan, No. 96-CR-00094-JSW-13, 2020 WL 1527895, at *4 (N.D. Cal. March 31, 2020) (internal quotations omitted). A “growing consensus” of courts have held that there is no longer an “applicable policy statement” by the Sentencing Commission regarding when “extraordinary and compelling reasons” exist under the amended
Consistent with numerous other courts to have confronted this issue, then, the Court concludes that it may consider extraordinary and compelling reasons other than the examples in the Application Notes to § 1B1.13.
B. Extraordinary and Compelling Reasons
Having determined that it is not limited to the exemplars in USSG § 1B1.13, the Court now considers whether there are “extraordinary and compelling reasons” for a reduction of Mr. Jones‘s sentence. The Court believes they do. As explained below, changes in federal sentencing law have rendered Mr. Jones‘s continued incarceration extraordinarily unjust. That injustice, together with the potential that Mr. Jones might be at increased risk for severe illness from COVID-19 and the various factors to be considered under
i. Changes in Sentencing Law
There have been two major changes to federal sentencing law since Mr. Jones‘s sentencing in 1995. First and foremost, at the time of Mr. Jones‘s sentencing, the trial court had no choice but to impose the 25-year consecutive prison sentence he received for his two
However, Deal‘s interpretation of
Even the U.S. Sentencing Commission declared that stacking results in “overly severe sentences for offenders who have not previously been convicted of an offense under section 924(c)” and recommended that Congress override Deal by statutory amendment. U.S. Sentencing Comm‘n, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System, at 270, 368 (Oct. 2011), available at http://www.ussc.gov/news/congressional-testimony-and-reports/mandatory-minimum-penalties/report-congress-mandatory-minimum-penalties-federal-criminal-justice-system.
With the FSA, Congress did just that. In § 403 of the FSA—entitled “Clarification of
A second change in law that came after Mr. Jones was sentenced was the Supreme Court‘s decision in United States v. Booker, 543 U.S. 220 (2005), which made the Guidelines advisory rather than mandatory. Kimbrough v. United States, 552 U.S. 85, 90 (2007). Post-Booker, a district court “may determine . . . that, in the particular case, a within-Guidelines sentence is ‘greater than necessary’ to serve the objectives of sentencing.” Id. at 91. For instance, a court may now impose the “mandatory minimum sentence under
The upshot of the foregoing is that Mr. Jones was sentenced under a regime that has not only been held unconstitutional but has also been substantially amended to eliminate the brutal harshness of stacking. The Court finds that, on the instant facts—including the severity of Mr. Jones‘s sentence and the gross disparity between his sentence and the sentence that Congress now deems appropriate—the above-described changes in sentencing law weigh strongly in favor of compassionate release. Today, Mr. Jones would likely receive 14.752 years imprisonment, if not less; the sentence he actually received—29.75 years—is more than twice that length. As a result, Mr. Jones “long ago completed a sentence which Congress . . . consider[s] sufficient and proportionate to his misconduct.” Quinn, 2020 WL 3275736, at *3. And because Mr. Jones was only 22 years old when he began serving his sentence, he has spent more than half his life in prison. Under these conditions, Mr. Jones‘s continued incarceration is unjust.
This Court‘s conclusion is supported by the decisions of the many other district courts that have granted compassionate release to similarly situated defendants. These courts have found that where an “enormous sentencing disparity” is created by the very “changes to federal sentencing law” at issue here, that disparity “constitutes an ‘extraordinary and compelling reason’ . . . for compassionate release.” Quinn, 2020 WL 3275736, at *4; see also, e.g., United States v. Bryant, No. CR 95-202-CCB-3, 2020 WL 2085471, at *3 (D. Md. Apr. 30, 2020) (“[T]he court finds that Bryant‘s continued incarceration under a
The Government makes two main arguments against considering the changes in sentencing law discussed above. In the Government‘s view, Defendant “is effectively seeking retroactive application of the FSA‘s provision eliminating stacking. Opp. at 7. But the fact that FSA § 403 was not made categorically retroactive “does not prohibit the court from considering this legislative change in deciding whether to reduce [a defendant‘s] sentence.” Quinn, 2020 WL 3275736, at *3 (quoting United States v. Decator, No. 95-cr-0202, 2020 WL 1676219, *4 (D. Md. Apr. 6, 2020)). On the contrary, “[i]t is not unreasonable for Congress to conclude that not all defendants convicted under
Moreover, it cannot be denied that FSA § 403 reflects a “legislative rejection” of stacking and a “legislative declaration of what level of punishment is adequate” for violations of
The Court likewise rejects the Government‘s objection that reducing a defendant‘s sentence based on subsequent legal changes would “undermine the finality of sentences.” Opp. at 9. Although “the principle of finality” is indisputably “essential to the operation of our criminal justice system,” Teague v. Lane, 489 U.S. 288, 309 (1989), it is not without exceptions. As the Ninth Circuit has explained, sentence reductions under
For these reasons and those detailed above, this Court joins the growing majority of courts in holding that the “sea changes” in sentencing law wrought by Booker and the FSA, United States v. Pree, 408 F.3d 855, 874 (7th Cir. 2005); Haynes, 2020 WL 1941478, at *15, weigh strongly in favor of reducing Mr. Jones‘s sentence.
ii. COVID-19
A further consideration for the Court is the COVID-19 pandemic. Although Mr. Jones does not claim to have tested positive for the virus, he asserts there is a significant risk that he will contract the virus and suffer complications from it if required to remain in custody.
There is no question that the ongoing COVID-19 pandemic is a global health crisis, and that it poses a significant threat to the health of inmates in the federal prison system. As this and other courts have held, however, “the mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release, especially considering BOP‘s statutory role, and its extensive and professional efforts to curtail the virus‘s spread.” United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020); see United States v. Luck, No. 5:12-CR-00888-EJD-2, 2020 WL 3050762, at *2 (N.D. Cal. June 8, 2020). The BOP has detailed the various preventative and mitigation measures it has implemented to protect inmates in its facilities, and this Court has not yet been given any cause to second-guess the efficacy of those measures. See Federal Bureau of Prisons, BOP COVID-19 Modified Operations Plan, https://www.bop.gov/coronavirus/covid19_status.jsp (accessed July 8, 2020); see generally Federal Bureau of Prisons, COVID-19 Coronavirus, https://www.bop.gov/coronavirus/index.jsp (accessed July 8, 2020).
At the same time, this Court has recognized that a particular inmate‘s heightened susceptibility to contracting the virus or to experiencing complications therefrom may rise to the level of extraordinary and compelling reasons for release. See, e.g., United States v. Madrigal, No. 5:18-CR-00356-EJD-3, 2020 WL 3188268, at *2 (N.D. Cal. June 15, 2020). The Government even acknowledges as much: “If an inmate has a chronic medical condition that has been
In this case, Mr. Jones argues that he is “more vulnerable to becoming seriously ill should he contract COVID-19” because he has essential hypertension and is African American. Mot. at 13-14; see Dkt. No. 73-9 (Exhibit I, BOP medical records, filed under seal).
The Court may quickly dispose of Mr. Jones‘s argument to the extent it is based on his being African American. It is true that the CDC has reported higher rates of hospitalization among “some racial and ethnic minority groups, including non-Hispanic black persons.” See Mot. at 14 (citing Centers for Disease Control, COVID-19 in Racial and Ethnic Minority Groups, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/racial-ethnic-minorities.html (last visited July 8, 2020)). As this Court has previously explained, however, there is no evidence that African Americans are inherently more susceptible to coronavirus. See United States v. Wade, No. 5:15-CR-00458-EJD-1, 2020 WL 3254422, at *3 (N.D. Cal. June 16, 2020). The CDC instead attributes the higher rates of hospitalization amongst African Americans to “[l]ongstanding systemic health and social inequities.” Centers for Disease Control, COVID-19 in Racial and Ethnic Minority Groups, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/racial-ethnic-minorities.html (last visited July 8, 2020)). That is, extrinsic factors such as living conditions, work circumstances, and the prevalence of certain underlying health conditions likely account for the statistical overrepresentation of minority groups among hospitalized patients. Wade, 2020 WL 3254422, at *3 (citing Aaron Williams & Adrian Blanco, How the Coronavirus Exposed Health Disparities in Communities of Color, WASH. POST (May 26, 2020), https://www.washingtonpost.com/graphics/2020/investigations/coronavirus-race-data-map). Hence, Mr. Jones‘s race is not itself a risk factor for serious illness from COVID-19.
On the other hand, Mr. Jones may be at heightened risk of serious illness due to his essential hypertension. Since the early days of the pandemic, the CDC has maintained a list of underlying medical conditions that may increase a person‘s risk of severe illness from COVID-19. See Centers for Disease Control, Who is At Increased Risk for Several Illness?, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last modified June 25, 2020). The Government argues that only pulmonary—and not essential—hypertension is included on that list. Opp. at 11. That may have been true in the past, see, e.g., United States v. House, No. 14-CR-00196-CRB-1, 2020 WL 2557031, at *2 (N.D. Cal. May 20, 2020), but is no longer the case. As of June 25, 2020, the CDC breaks its list into two groups: persons who “are at increased risk of severe illness” and persons who “might be at an increased risk for severe illness.” Id. The first group comprises persons with conditions for which the evidence of increased risk is the “strongest and most consistent“; the second group comprises persons with conditions for which the evidence of increased risk is “mixed.” See Centers for Disease Control,
“Pulmonary hypertension” is in the first group and “hypertension” is in the second group. In other words, the CDC has determined that pulmonary hypertension almost certainly puts persons at increased risk of severe illness; other forms of hypertension might also elevate an individual‘s risk, though the evidence is less definitive. Because the evidence of increased risk due to essential hypertension is suggestive but not conclusive, the Court does not decide today whether having essential hypertension would be sufficient on its own to justify compassionate release. But considered in combination with Mr. Jones‘s rehabilitative efforts and the changes in sentencing law described above, the Court finds that Mr. Jones‘s potential for heightened risk weighs in favor of compassionate release.
iii. Section 3553(a) Factors
A modest reduction in Mr. Jones‘s sentence is also supported by the factors at
First of all, Mr. Jones has already served nearly all of his original 29.75-year custodial sentence. He is projected to satisfy his sentence in the instant case and begin serving his sentence in the Colorado case on September 15, 2020; he is then projected to be released on September 14, 2021. As a result, a mere 14-month reduction in his original sentence would be sufficient to permit Mr. Jones‘s immediate release.
Meanwhile, Mr. Jones‘s post-sentencing rehabilitation indicates that an additional 14 months of incarceration would be unnecessary. Post-sentencing rehabilitation is a “critical factor” in judging the reasonableness of a sentence under
In this case, Mr. Jones has submitted ample documentation of his efforts at personal growth and rehabilitation during his incarceration support a reduction in his sentence. As part of his motion, Mr. Jones has provided a copy of his “Summary Reentry Plan - Progress Report” dated May 26, 2020 and signed by his prison case manager, Shanell Whitley. See Dkt. No. 73 ¶ 6; Dkt. No. 73-5 (“Progress Report“). The Progress Report documents Mr. Jones‘s work assignments, education history, discipline, and other particulars of his 25 years in prison. According to the Report, Mr. Jones has taken 44 classes in a wide range of subjects, including Financial Planning; Commercial Driver‘s License; Spanish; Parenting Skills; Job Search / Interview Technique; Anger Management; Real Estate; Microsoft Office 2010; Business Planning; The Great Depression; Classic Literature; Beginner Digital Photography; Business Law; Spelling and Vocabulary; Recycling and Waste Management; Lawn Care; and Acrylic Painting. In addition, the “Work Assignment Summary” indicates that Mr. Jones is currently working as a unit orderly and that he “assist[s] with Institutional Admission and Orientation for incoming inmates.” Summary Reentry Plan at 1. The same section of the report further notes that he “has earned excellent work evaluations.” Id.
The Court finds that these are significant accomplishments. They evince Mr. Jones‘s dedication to making changes in his life and his self over the past 25 years in prison. Furthermore, in his letter to the Court, Mr. Jones acknowledges the “many mistakes” he made when he “was first imprisoned at the age of 22 years old” and that his imprisonment was “self-inflicted.” Dkt. No. 73-8. Mr. Jones then goes on to profess his “commit[ment] to being a better man, son, father, and now grandfather” and his intention to use his “voice . . . to help the youth understand that prison for many is the end of the road and no place to spend the rest of your life.” Id. Based on this record, the Court is persuaded that Mr. Jones‘s demonstrably successful strides toward rehabilitation weigh in favor of a reduction in his sentence.
The Government, meanwhile, does not argue that a sentence reduction would undermine goals of sentencing or otherwise contravene
iv. Conclusion
Thus, when the Court considers the significant changes in law since Mr. Jones‘s sentencing, Mr. Jones‘s heightened risk of complications from COVID-19, and the applicable
C. Danger to the Community
Finally, the Court must assure that Mr. Jones “is not a danger to the safety of any other person or to the community, as provided in
Finally, the Court notes that Mr. Jones “will not simply be turned loose as a result of this Order,” Quinn, 2020 WL 3275736, at *2; rather, he will still have to complete five years of supervised released, as originally imposed by Judge Ware. This will assist him in his “transition to community life” and “fulfill[] rehabilitative ends.” United States v. Johnson, 529 U.S. 53, 59 (2000). During that transition and thereafter, Mr. Jones will have the support of his family and friends—six of whom wrote letter of support for the instant motion. See Dkt. Nos. 73-10 to 73-15.
The Court therefore finds that Mr. Jones‘s release would not be a danger to the community or to any individual person.
D. Amount of Sentence Reduction
One final matter remains: the amount of the sentence reduction. As noted above, a 14-month sentence reduction would be sufficient to permit Mr. Jones‘s immediate release, and that is the reduction the Court will grant.
In so doing, the Court rejects the Government‘s request to limit any sentence modification to time served, which amounts to a reduction of less than 2 months. See Opp. at 14. For the reasons already given, Mr. Jones has shown that a reduction of at least 14 months is warranted. In particular, Mr. Jones‘s 29.75-year sentence is 15 years longer than what is now deemed appropriate for his crimes. That is why Mr. Jones asks the Court to reduce his sentence on the second
It is true, of course, that a sentence reduction of 14 months will mean that Mr. Jones has already completed the custodial term for his Colorado case. But that is simply the consequence of the sentence reduction to which Mr. Jones is entitled. If the Government believes the District of Colorado should resentence Mr. Jones in light of this Order, it should move for resentencing before that Court.
IV. CONCLUSION
For the foregoing reasons, the Court will GRANT Mr. Jones‘s motion for compassionate release pursuant to
You must submit your person, residence, office, vehicle, or any property under your control, including any computers, cell phones, and other electronic devices, to a search. Such a search shall be conducted by a United States Probation Officer at a reasonable time and in a reasonable manner, based upon reasonable suspicion of contraband or evidence of a violation of a condition of release. Failure to submit to such a search may be grounds for revocation. You must warn any residents that the premises may be subject to searches.
The Probation Office for the Northern District of California has proposed a release plan and verified the suitability of the residence. However, because Mr. Jones plans to reside in the Eastern District of California, this order is stayed for up to 7 days to allow for verification of the residence and release plan by the Eastern District of California. The defendant shall be released as soon as a residence is verified, a release plan is established, appropriate travel arrangements are made, and it is safe for the defendant to travel. There shall be no delay in ensuring travel arrangements are made. If more than 7 days are needed to make appropriate travel arrangements and ensure the defendant‘s safe release, the parties shall immediately notify the court and show cause why the stay should be extended.
Finally, once Mr. Jones is released from custody, he must self-quarantine at his residence for an additional 14 days, as directed by the probation officer.
IT IS SO ORDERED.
Dated: August 25, 2020
EDWARD J. DAVILA
United States District Judge